.mobi LAWSUITS? Your success all depends on what auction you won and remedy you seek.

[jeremyp]

Brace yourself. None of you are likely to be thrilled with what you read below... MTLD, SEDO OR AUCTION WINNERS.

SEDO AUCTION III - CLOSE #1
You won't win if you pursue SEDO or MTLD. Simple as that. The site was down with no bidding opportunities for the last 10 minutes of the auction.

Even if you believe you have a compelling argument, just try to prove damages. The damaged party is clearly the seller.

It is not in the public interest to enforce an auction result that so heavily and unilaterally affects one party.

How is seller affected under close #1? Measurably and horribly. If the auction closes with no potential bidding in the last 10 minutes, the seller loses any chance of a legitimate result. Who could argue that most domain name bidding doesn't happen in the last 10 minutes of an auction? Oh wait... In this case, you simply can't. They opened the auction back up and prices skyrocketed. This is as clear cut as it gets.

How is buyer affected under close #1? You lose the opportunistic purchase of the decade. Gosh, I'm not so sure the courts are set up to help a buyer achieve such an overwhelming bargain. Wait... I am sure. I'm positive in fact. You have a very weak case.

Bottom Line - There is very little here. Spend your money, tie it up in court, you will likely lose. Keep your money.

SEDO AUCTION III - CLOSE #2
From a buy-side you had reason to believe that this was a legitimate auction close.

From a sell-side, if SEDO and MTLD agreed to move forward with CLOSE #2, It's hard to see a scenario where either party can then move to void the auction.

There is a more compelling public interest to protect this result assuming you actually issued consideration, actually placed money into escrow.

In the end, however, you will have one hell of a time proving damages.

However...

SEDO AUCTION III - CLOSE #3 JANUARY 2008
I'd argue that there would be 2 possible remedies for Close #2 buyers:

Remedy #1 - If the purchase price of Close #3 is higher than Close #2, I'd go after the incremental $ between the two auctions. For instance, if jeremypadawer.mobi sold for $5,000 in Close #2 and $8,500 in Close #3, I'd argue that you have a $3,500 damage claim plus time value of money in escrow. You could potentially sit on your hands and wait for the result of #3 before you sue. If Close #3 is lower than #2, I sincerely doubt that you'll seek a remedy anyway.

Remedy #2 - Specific Performance of Close #2. It's going to be tough. You will have to move quickly for an injunction to stop Close #3 from happening on your domain name.

FOR THOSE SUING...YOU ARE IN NO SAFETY ZONE
Don't for a second feel that you are in a safety zone. Just because you feel damaged, doesn't mean you are legally damaged. You could feel damaged and then get sued. This happens to victims all the time.

For instance, you are a winner of the Close #2 auction. You wait until Close #3 and you sue for Specific Performance. You try to establish an injunction, thus placing another potentially legitimate contract in limbo. Is it far fetched to think that you couldn't find yourself a defendant in a suit with the Close #3 buyer and/or SEDO and/or MTLD? All 3 have standing... All 3 aren't getting paid or aren't getting domain name property due to your choice.

FINAL NOTE / SUMMATION:
Close #1 Plaintiffs -
Give it up. It's weak. Many of you are simply acting opportunistically. It's transparent. You got a deal on a name because the darned thing shut down. It's just simply a very difficult, and probably excruciatingly difficult, case.

Close #2 Plaintiffs -
If you absolutely must have the domain, you must act quickly. Don't dilly dally. Don't feign a lawsuit. You must not allow the Close #3 to occur. If on the other hand you are more interested in damages, wait until the close of Close #3 and then sue if Close #3 is higher than Close #2. If not, let it go.

Sincerely, your friend in this business/hobby -
Jeremy Padawer

PS - Yeah, I have a law degree. No, I don't practice law. No, don't rely on what I'm telling you above as the gospel. It is, however, my gut instinct as a businessperson, a domainer, and a straight-shooter.

Have a Happy Holidays...

 

[Mobi Cheap]

...
FOR THOSE SUING...YOU ARE IN NO SAFETY ZONE
Don't for a second feel that you are in a safety zone. Just because you feel damaged, doesn't mean you are legally damaged. You could feel damaged and then get sued. This happens to victims all the time.

For instance, you are a winner of the Close #2 auction. You wait until Close #3 and you sue for Specific Performance. You try to establish an injunction, thus placing another potentially legitimate contract in limbo. Is it far fetched to think that you couldn't find yourself a defendant in a suit with the Close #3 buyer and/or SEDO and/or MTLD? All 3 have standing... All 3 aren't getting paid or aren't getting domain name property due to your choice.

FINAL NOTE / SUMMATION:
Close #1 Plaintiffs -
Give it up. It's weak. Many of you are simply acting opportunistically. It's transparent. You got a deal on a name because the darned thing shut down. It's just simply a very difficult, and probably excruciatingly difficult, case.
...

Outstanding post, proving inter alia that shooting straight is way underrated!
:imho:

 

[connections]

So where does this leave people who won the same domain,

In Auction 1 + 2.

I do have done law "subjects" at uni.

Does it mean I would give advice on a forum, no I think I will leave it to the professionals with industry based experience.

 

[gou]

It doesn't hurt to hear thoughts from an experienced domainer with a law degree either.

 

[dalem]

Jeremyp how much has sedo paid you to say this?

Or do you work for sedo?

 

[VirtualT]

So where does this leave people who won the same domain,

In Auction 1 + 2.

I do have done law "subjects" at uni.

Does it mean I would give advice on a forum, no I think I will leave it to the professionals with industry based experience.

more like sour grapes

 

[onassis]

Very funny, based upon your post. All legal, judge and lawyer can quit as your judgement given are one sided only.

The principle of law is ruled by the judgement of human being linked to righteous and justice. I strongly believe in law as a national citizen.

Assumption like your post does not valid at all.

 

[Alan Glennon]

Brace yourself...

I appreciate the analysis. Attempts at impartiality regarding important domain topics are quite welcome. Repped.

 

[sags]

Thanks for a concise summary of the probable outcomes of any legal action.

I do agree with some posters that a more definitive and professional online auction process should be implemented by domain name companies though.

Regards,

Sags

 

[nametrekker]

It's nice to get a perspective from:

1) A domain insider who has a law degree,

2) An executive from the corporate world who specializes in negotiations,

3) Someone who has earned respect from even prominent mobi nay sayers, and dotcom megastars

4) Someone who gets interviewed by some of the most well-known "domain media" channels

great job!

 

[jeremyp]

A few responses to NP members...

Connections -
You can check out my credentials on www.jeremy.com. Go to "About Me."

Dalem -
Sedo has taken a different position. That should be clear above.

Onassis -
You'd be surprised how much of the law is based on the reasonable person.

Mobi Cheap, Gou, Nametrekker, Sags, Jagusa -
- Thanks

This is now also the headline on www.dotmobiz.com. Cool.

Jeremy Padawer

 

[danmanmktng]

Hey Jeremy, thanks for posting. I have been wondering what someone who knows the law thinks of all this.

Once auction #3 closes, do you know whether it will be possible/plausible that people who sue based on auction #2 results will be able to gain injunctions that prevent use of the names for an extended period of time?

Also, do you know whether the same logic from your original post applies in European courts? I guess Ireland and Germany are the 2 relevant ones.

Thanks,
Dan

 

[jeremyp]

Hey Jeremy, thanks for posting. I have been wondering what someone who knows the law thinks of all this.

Once auction #3 closes, do you know whether it will be possible/plausible that people who sue based on auction #2 results will be able to gain injunctions that prevent use of the names for an extended period of time?

Also, do you know whether the same logic from your original post applies in European courts? I guess Ireland and Germany are the 2 relevant ones.

Thanks,
Dan

Dan,

If the auction close #2 winners want to specific performance of the contract (want the domain name), the time for an injunction is before auction close #3.

Once auction close #3 closes, it becomes more difficult and risky as there is yet another party involved.

Regarding the jurisdiction of the lawsuit. I've taken a US-centric view above. I can't speak to the jurisdiction or the laws of Germany or Ireland.

I can say that jurisdiction is another big, and expensive, mess.

Your Friend,
Jeremy

 

[PVFARKAS]

I respectfully disagree with the Sedo Auction III, Close # 1 analysis

I am involved and will not say more..

 

[allnicksgone]

Very funny, based upon your post. All legal, judge and lawyer can quit as your judgement given are one sided only.

You could say the same thing about those who claim they have an unbeatable case against Sedo/mTLD, but you haven't.

My prediction is the parties bringing the lawsuit will take the case to court to get a fair, objective ruling. The ruling will not be in their favor. Then they will claim the ruling was not fair for some reason or other.

 

[TheBaldOne]

Jeremy, as per on <Removed> I would ask you to cite cases to back up your analysis, as you hold a law degree you will know how to and also the online reference sources that are available.

The case of the plaintiffs is not vexacious and therefore they are not leaving themselves open to any counter claim, again I have pointed this out to you on another forum (as mentioned above) and asked you to specifically cite instances of a similar nature where such has occurred, you have failed to reply to either of my requests for such information?

Please post here or on the other forum the case citations so that they may be taken into account.

 

[Alan Glennon]

I don't think the original poster is being paid (or graded) for his opinion, so requesting a case review is a little much.

...I would ask you to cite cases to back up your analysis...

 

[DomainTalker]

The ruling will not be in their favor. Then they will claim the ruling was not fair for some reason or other.

That's nonsense...silly supposition, allnicksgone.

If a court rules on this - that's it, we accept it.


jeremyp...


Actually, a 'reasonable person' may very well say to the Seller:


"You, and your auctioneer, had the opportunity, at the time, to close, or suspend, the auction, when problems became apparent, and before the auction time expired - You failed to do that - It is unreasonable to allow a Seller to void a contract because you made poor choices, and now regret the consequences (lower prices) of the choices you made".


1st auction winners have a strong case, imo.

.

 

[jeremyp]

Jeremy, as per on <Some crap> I would ask you to cite cases to back up your analysis, as you hold a law degree you will know how to and also the online reference sources that are available.

The case of the plaintiffs is not vexacious and therefore they are not leaving themselves open to any counter claim, again I have pointed this out to you on another forum (as mentioned above) and asked you to specifically cite instances of a similar nature where such has occurred, you have failed to reply to either of my requests for such information?

Please post here or on the other forum the case citations so that they may be taken into account.

You want case law.

I'll need a research assistant and a retainer.

I'm giving you my gut instinct... not a legal standard supported by case law.

I'll tell you this. I'd bet on my gut instinct over the word "vexacious," which is a nice law school word. (...actually spelled vexatious)

Jeremy Padawer

PS - I might as well crack open a law book. I can't sleep. The baby is waking up every other hour.

 

[TheBaldOne]

Jeremy, if I were worried about my spelling in the early hours of the morning here in the UK I would put all my posts through a spell checker, I am not though so worried.

It will be good to debate these points. By the way the word 'vexatious' is a good legal term used widely when trying to explain to clients the likelyhood of bringing a claim with no or little merit to the courts.